The Takings Clause As a Comparative Right – Article by John E. Fee

The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”

One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.

The comparative-right basis for the takings doctrine, however, is largely ignored in modern regulatory takings law. Our regulatory takings doctrine today functions more like a substantive due process right. Similar to due process cases prohibiting excessive punitive damages awards, the law of regulatory takings is commonly understood as a defense for individuals against government actions that are extreme and unreasonable as applied to the individual, rather than as a guarantee of equal treatment among members of a community. Whether regulation of one owner’s property has gone “too far” for regulatory takings purposes is determined independently of how the government regulates other owners.